Citation Nr: 1309322 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 99-15 705A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a throat disorder, to include as associated with diagnosed sinusitis and rhinitis, and claimed as (i) incurred or aggravated by active service, and (ii) as secondary to medications received for service-connected hypertension and PTSD. 2. Entitlement to a compensable initial rating for hypertension. 3. Entitlement to an effective date earlier than April 14, 2000, for service connection for hypertension. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to February 1977. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in February 1998 and July 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. It appears that the Veteran, in February 15, 2013 notice, revoked his representation with the Texas Veterans Commission as he states that "All of your work and information will come to me, not the TVC, you will be working with me (only)." The February 1998 RO rating decision denied service connection for a throat disorder. Newly appealed are the issues of (1) entitlement to a compensable initial rating for hypertension, and (2) entitlement to an effective date earlier than April 14, 2000, for service connection for hypertension. These claims are appealed from the July 2011 RO rating decision, which is associated with the Virtual VA claims file. A notice of disagreement was received in January 2012, a statement of the case was issued in September 2012, and a VA Form 9 was received within 60 days, in November 2012. See 38 U.S.C.A. §§ 7104 (jurisdiction of the Board), 7105 (filing of notice of disagreement and appeal). A review of the Virtual VA paperless claims processing system does not reveal any additional evidence pertinent to the presently appealed claims. In March 1999 and June 2000, the Veteran testified at hearings with a decision review office (DRO); transcripts of these hearings are associated with the claims file. The matter of service connection for a throat disorder was the subject of Board remands dated in August 2005, January 2006, January 2010, and October 2010. The matter of entitlement to service connection for a throat disorder was further the subject of a November 2012 Memorandum Decision of the Court of Appeals for Veterans Claims (Court), by which the Court vacated the Board's June 2011 decision in this matter and remanded the claim to the Board for further action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran has indicated that he is receiving continuing medical treatment at his place of incarceration. The AOJ should seek to obtain any potentially relevant medical records that have not yet been previously obtained. The Board notes that the AOJ has initiated this process by actions as indicated in a December 2012 deferred rating decision. See 38 U.S.C.A. § 5103A(a)-(c). Additionally, in a November 2012 Memorandum Decision, the Court identified certain aspects of the medical opinion evidence in the claim for service connection for throat disability that require clarification. As this would appear to include whether the Veteran has a current throat disorder, as opposed to throat symptoms attributable to nose or sinus disorders, a new examination is required in addition to the required clarification of prior medical opinions. As a result, a new VA examination and opinion will be requested. See 38 U.S.C.A. § 5103A(d); Colvin v. Derwinski, 1 Vet. App. 171 (1991) (the Board is not competent to supplement the record with its own unsubstantiated medical conclusions; VA is always free to supplement the record by seeking an advisory opinion, or ordering a medical examination to support its ultimate conclusions). Further, as noted by the Court, the Veteran has introduced new theories of entitlement with respect to his claim for service connection for a throat disorder. These theories involve whether the Veteran has sinus, nose, and throat symptoms secondary to medications provided for service-connected psychiatric disability and hypertension. A November 2002 treatment note indicates that the Veteran has a "chronic cough possibly due to ACE I," apparently referring to ACE I inhibitors used to treat the Veteran's now-service-connected hypertension. The November 2002 VA treatment record also discusses chronic post-nasal drip and includes a diagnosis of viral pharyngitis. The Veteran has submitted documentation as to side effects of his medications that lend plausibility to his new contentions. Medical opinions should be obtained as to these matters. Colvin, 1 Vet. App. at 171. With respect to the newly appealed claims for a compensable initial rating for hypertension and an effective date earlier than April 14, 2000, for service connection for hypertension, the Veteran has submitted a significant quantity of new evidence and has provided additional argument since the issuance of the September 2012 statement of the case. As noted, the claims file indicates that the AOJ is in the process of considering the newly received evidence, conducting appropriate development, and taking additional appropriate actions. There is no indication in the Virtual VA claims file or the Board's Veterans Appeals Control and Locator System (VACOLS) that a supplemental statement of the case has been issued. See 38 C.F.R. § 19.31 (supplemental statement of the case). Additionally, there is no waiver of AOJ consideration for this additional evidence to allow the Board to proceed with review. In correspondence received by the Board in February 2012, the Veteran indicated that he need not receive every benefit sought on appeal in order to satisfy his appeal. If the Veteran is awarded additional disability compensation benefits, as the Veteran apparently expects, such as, for example, an increased rating for hypertension, the AOJ should contact the Veteran in order to ascertain whether the benefits awarded satisfy his appeal, or whether he instead wishes to continue his appeal to the Board. If at some point there remains no dispute of fact or law as to the matters on appeal, the Board's jurisdiction of the matters on appeal may cease. See 38 U.S.C.A. §§ 7104, 7105(d)(5); 38 C.F.R. § 20.101(d). Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to identify all records of VA and non-VA health care providers who have treated him for upper respiratory or throat symptoms, or hypertension, during the period from his discharge from service, in February 1977, through the present time. After obtaining any appropriate authorizations for release of medical information, the RO/AMC should seek to obtain any potentially relevant and available records that have not been previously received from each health care provider the Veteran identifies. The records sought should include any new records of treatment at the Veteran's place of incarceration or any records of VA treatment that have not been previously received into the claims file and are potentially relevant to the Veteran's claims. The Veteran should also be advised that with respect to private medical evidence he may alternatively obtain the records on his own and submit them to the RO/AMC. 2. Take all actions as necessary to develop and adjudicate the newly appealed claims for (i) entitlement to a compensable initial rating for hypertension and (ii) entitlement to an effective date earlier than April 14, 2000, for service connection for hypertension. These issues are newly appealed but, as discussed above, development and adjudication at the RO appears to be pending. 3. If additional benefits are awarded, contact the Veteran to determine whether the benefits awarded are sufficient to satisfy his appeal. See Veteran's letter to Board received in February 2012. 4. Unless the Veteran does not continue his appeal, after all additional relevant medical evidence is received schedule the Veteran for a VA examination with an appropriate clinician, for the purpose of obtaining additional examination and opinion evidence with respect to his claim for service connection for a throat disorder, to include diagnosed sinusitis and rhinitis, claimed as incurred or aggravated by active service, and as secondary to medications received for service-connected hypertension and PTSD. The claims file should be forwarded to the examiner for review, and the examiner should indicate that the claims file was reviewed. The examiner should take a complete history from the Veteran as to the nature and onset of his symptoms of throat, nose and sinus disability. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must state this, with a fully reasoned explanation. If the Veteran, who has been incarcerated in recent years, is unable to appear for the examination, the claims file should be forwarded to the examiner and medical opinions should be provided to the extent feasible based on the evidence in the claims file. Although the examiner is requested to review the claims file, for an overview of the salient facts pertinent to this claim, the examiner is referenced to pages six through nine of the Board's now-vacated June 2011 decision in this matter, and to the Court's November 2012 Memorandum Decision in this matter. The examiner must provide diagnoses and findings as appropriate for each condition of the throat, nose, and sinuses. If the Veteran is found to have throat symptoms, but not a throat disorder, the examiner should explain this distinction, with a fully reasoned explanation. The examiner should review the medications the Veteran receives for his service-connected PTSD, left knee disability, and hypertension. The examiner should provide an opinion as to whether the Veteran's chronic cough is caused or chronically worsened by medications he receives for hypertension. A November 2002 VA treatment record indicates that ACE inhibitors that the Veteran receives for hypertension may be associated with his chronic cough. The examiner should provide an opinion as to whether the Veteran has nose, throat, or sinus symptoms that are associated with medications he receives for service-connected hypertension, service-connected PTSD, or service-connected knee disability. In light of questions raised by the Court of Appeals for Veterans Claims, the examiner should provide specific opinions as to (1) whether it is at least as likely as not that the Veteran's throat symptoms are related to chemical exposure in service (he is presumed to have been exposed to certain herbicide agents, including Agent Orange), and (2) whether it is at least as likely as not that the Veteran's sinusitis and rhinitis are related to his throat symptoms. More generally, the examiner should provide an opinion as to whether the Veteran has a disorder of the throat, nose, or sinuses that began during service, was chronically worsened during service, or is caused or chronically worsened by any service-connected disability, including as due to medications for service-connected disabilities. In all conclusions, the examiner should identify and explain the medical basis or bases, with identification of the relevant evidence of record. The examiner is requested to provide a fully reasoned explanation for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles. 5. Readjudicate the issues on appeal. If the benefit sought remains denied, provide the Veteran and his representative a supplemental statement of the case and an appropriate period of time for response. Thereafter, subject to current appellate procedure, the case must be returned to the Board for further consideration, if otherwise in order. No action is required of the Veteran until he is otherwise notified by the RO/AMC. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).